Copyright Is Over – If You Want It (Guest Post)

Christian Marclay's massively popular artwork "The Clock" is comprised of thousands of preexisting film clips strung together into a 24-hour minute-by-minute cycle. It's been widely celebrated, attended by crowds around the globe. Critical praise has been heaped upon it: The New York Times hailed the piece as the ultimate work of appropriation art, and it dovetails with memes like supercuts ("fast-paced montages of short video clips that obsessively isolate a single element from its source, usually a word, phrase, or cliché from film and TV"). So far, so good: a massively popular work constructed in the style of broad-based web trends, which is also acclaimed, valorized, funded, exhibited, and collected by the most powerful art world institutions. And yet, the elephant in the room is copyright: few have mentioned that Marclay hasn't cleared any permissions with Hollywood for his work. "Technically it's illegal,” Marclay said in The Economist, “but most would consider it fair use.”

The Clock is an expensive, limited edition work of art — one sold in 2011 for nearly a half a million dollars; in 2012, he made six more copies available to institutions — born of free-culture frisson.

He's breaking copyright and nobody — not the art collectors, nor the museumgoers, nor the MPAA — seems to care.

In an interview with The New Yorker, Marclay explained his idea of copyright: "If you make something good and interesting and not ridiculing someone or being offensive, the creators of the original material will like it." It's something he's stood by for the past three decades as he's woven a career out of sampling, appropriation, and remixing. In spite of Marclay's success, he hasn't given up on free culture. On any given night for a few bucks, you can hear Marclay perform improvised turntable music with the likes of John Zorn and Thurston Moore. Or you can pick up one of his many CDs (many of which are floating around for free on file-sharing), which feature — again, unpermissioned — cut-ups of big money recordings by Maria Callas or Jimi Hendrix. No one's ever told him to knock it off or come after him for sampling royalties.

Artists like Marclay and Girl Talk (who also hasn't cleared any samples to date) treat preexisting materials respectfully and creatively, carving out a unique cultural milieu where commercial and free cultures co-exist. The highly regarded young video artist Ryan Trecartin releases his works on Vimeo for free, while selling identical (but signed) editions in commercial galleries. Yet his market thrives. Similarly, Wade Guyton, who makes paintings shot out of ink-jet printers, tried to tank his own market this spring by pumping out a studio full of identical paintings made from the same computer file as the "original" that was going up for auction at Christie's. It didn't work. The painting, which was estimated to sell for $2.5 million to $3.5 million, ending up selling for $3.525 million. Messing with the market — the purposeful confusion between originals and copies — have been part and parcel of the art world ever since Marcel Duchamp bought a urinal from a hardware store, put it on a pedestal, and called it art. For the past one hundred years in the art world, nobody thinks twice about calling something theirs that isn't.

These are the children of Andy Warhol, who was never sued by Campbell's for copyright infringement. But back in those days, artists were free to sample. Marclay's turntablist practice was hinged upon the availability of shared resources. It wasn't until the rap explosion of the early '90s that rightsholders began to see the monetization potential in licensing preexisting cultural materials, an attitude which went into overdrive in the digital age.

In spite of that, artists continue to gleefully flout the law. A few years ago, the appropriation artist Richard Prince — who was sued for his use of a photographer's images (he ended up settling out of court) — took one of America's most valuable literary properties, "The Catcher in the Rye," and has made drop-dead word-for-word facsimiles of the first edition. Everywhere Salinger's name appeared, Prince substituted his. He sells a signed copy bearing the signature of "Richard Prince" for whatever Salinger's signed first edition is going for that day. He's yet to be bothered by the Salinger estate. The Prince edition — long sold-out — was going for about $500, but occasionally, you can find him hawking the book on the sidewalk in front of Central Park — dozens of copies spread out on a blanket — for $40 each.

We didn't ask for permission to host them, yet no lawyers have contacted us asking us to take them down.

If we had to ask for permission, we wouldn't exist. Taking a cue from Marclay, we assume that if we contextualize the works respectfully, artists will appreciate it, and they'll be okay with it. For nearly two decades, that's been the case.

UbuWeb doesn't touch money. We don't take money and we don't sell anything. The site is entirely run by volunteers; our servers and bandwidth are donated to us by an art school in Mexico City. Without any institutional backing, we've managed to host several terabytes of materials of nearly 5000 artists and 75,000 cultural artifacts. The primary source material that UbuWeb has on the site dwarfs what, say, MoMA has on its site — only because MoMA has to go by the standard copyright playbook. If anything goes up on their site, they've got to clear permissions. UbuWeb simply puts things up.

As a result, on our Twitter feed, we've been able to make some outrageous claims like, "If it isn't free, it doesn't exist," or "Copyright is over. If you want it," and actually mean it.

A few years ago, I came close to shuttering UbuWeb, figuring that MP3 sharity blogs were doing as good a job as we were. And then came the Megaupload meltdown and the dismantling of that ecosystem. Boy, am I glad we stayed the course and controlled our own servers. A favorite UbuWeb hashtag is #donttrustthecloud. Use it, abuse it, but don't count on it. As we recently saw with Soundcloud and continue to see with YouTube, what appears to be free is not free at all but is heavily monitored and controlled properties.

We hear again and again that the web is becoming a less-free place, that it is being monopolized by a few corporate entities and that it'll soon be more like TV than like the web we once knew. And it's true, which is why these patches of resistance are more important than ever. Call them arty, marginal bubbles, but places like UbuWeb, WFMU, PennSound, aaaaarg and Monoskop serve as reminders that the web still is — and still can be — free.

Kenneth Goldsmith is the author of eleven books of poetry and founding editor of the online archive UbuWeb (ubu.com). In 2013, he was named as the inaugural Poet Laureate of The Museum of Modern Art in New York.

Billboard welcomes reponsible commentary. Pleasesendsubmissions to the editor at andrew.flanagan@billboard.com.